What Are Rights? Two Early Modern Attempts at an Answer

By: Brandy Harrison

You only have to turn on the television or glance at the news headlines to encounter it: the rhetoric of human rights. Maybe it’s an editorial in the New York Times worrying about the possible erosion of “women’s rights” under the Trump presidency, or perhaps there is a story about “human rights violations” that has gone viral on social media this morning, destined to provoke outraged responses from people all around the world moved by the plight of civilians in, say, Syria, or horrified by a so-called honor killing in rural Pakistan. There have been heated debates in recent years concerning our “right” to freedom of speech, especially in the wake of the Charlie Hebdo massacres in France. The language of human rights is, as Richard Tuck (1) and Michael Ignatieff have noted (7), of immense importance in contemporary political and international relations, but what exactly do we mean when we talk about our rights? What are rights? Where do they come from? Who gets to determine which rights we have, who gets to have them, and what – if any – limitations should be placed upon them? How do our conceptions of rights differ from those held by our ancestors?

Despite what we might think at first, the history of human rights is anything but coherent and linear. There is not just one, monolithic human rights discourse developing step by step throughout the centuries, but many discourses, often contradicting and competing with one another for dominance. The purpose of the present article is to explore the general development of what I perceive to be the two biggest and broadest tendencies in the history of human rights, and their application in my own era of specialization, the Renaissance: what I call the pragmatic discourse, and the transcendent discourse. As we shall see, both discourses find a prominent place in the Renaissance, or Early Modern era, but as my two case studies will demonstrate, these two discourses represent very different ways of thinking about “rights”. To this end, my article is divided into four sections. First, I will offer a brief overview of rights discourses in pre-Renaissance Europe. In my second section, I will discuss my first case study, Sir Edward Coke, examining how Coke’s conception of “English liberties” is based upon a highly pragmatic understanding of Magna Carta and English common law. I will then turn to the work of the Spanish theologian Francisco de Vitoria, who adapts traditional, transcendent theories of natural law to defend the rights of the indigenous peoples of South America after the Spanish Conquest. In my conclusion, I will briefly reflect upon the legacy of both the pragmatic and transcendent rights discourses as they affect our understanding of human rights today. It is my hope that through taking a closer look at the historical development of rights discourses, we can come away with a better and richer understanding of the enduring complexities inherent in the very notion of “rights”.

A Pre-Renaissance History of Rights

The first and most basic question that someone new to the history of rights might ask, “When were rights first invented?”, does not have a straightforward answer. Much depends on how, exactly, we define what we mean by “rights”. In modern Western liberal democracies, we tend to associate rights with the individual, thereby conceiving of rights as something intrinsically personal and subjective in nature. The first place we might look when seeking to find the origins of such individual rights is the ancient world. In ancient Roman law, there are two concepts that play a pivotal role in rights discourse: dominium and ius. Out of the two terms, dominium is the more straightforward, denoting ownership and control of something or someone (the Romans, after all, owned slaves). The second term, ius, is more problematic: English translators tend to translate the word as “right”, but this can be misleading, for as Richard Tuck explains, in ancient Rome, “ius was taken to be something objectively right and discoverable, and in this sense it remained as a kind of synonym for ‘law’ throughout the history of Latin as an effective language” (8). When we examine the use of the term ius in context, it becomes apparent that the Romans used the term in the sense of “what is right”, or “what is just”, in arbitrating any particular legal dispute (8). Tuck does acknowledge that it is still possible the Romans did indeed have the concept of a subjective, individual right, for “the mere absence of a word or phrase translatable into modern terms proves nothing”, but he concludes that it is unlikely the Romans would have neglected to legally codify such an important concept, if they had it (12). On the other hand, there are some scholars, such as Brian Straumann (57-58), who are still willing to argue for the existence of subjective individual rights in ancient Rome. Regardless of whether or not we are persuaded of the existence of a specifically subjective or individualistic sense of rights in Roman law, it is nevertheless clear that a concept of “rights” in some form was already beginning to take shape in the ancient world.

The next potential source for the birth of individual rights is the Middle Ages, during which many canonists and theologians – most famously, St. Thomas Aquinas – became deeply engrossed with theories of natural law. Natural law theory is the belief that there is a transcendent, divinely-ordained moral order that is universally present in all times and places. As research conducted by medievalists such as Jean Porter has revealed, medieval theologians could sometimes differ slightly in their interpretations and applications of natural law, but they were generally in agreement that man could discern what is right and wrong through the use of his rationality, or “right reason” (Porter 219-220). As Daniel Westberg writes, in the theories of Aquinas, “The force of natural law is meant to function as a standard for all human action: both ‘individual’ actions, determined by an individual’s free choice, and actions regulated by the positive [that it is to say, man-made] law of a community” (10). It is important to stress, then, that medieval theorists of natural law believed that there was an eternal moral order that was the universal basis for evaluating conduct, both private and public. Furthermore, natural law theorists also had a tendency to idealize man as he had supposedly been in his original state of nature, believing that all property had once been held in common, and that all men were born free (Porter 224). It is also in the Middle Ages that we can discern a gradual move towards something more closely resembling our idea of rights. As Richard Tuck explains, “for neither the Romans nor the early medieval lawyers could liberty be an ius, a right. The Romans had in fact contrasted libertas with ius, and emphasized its natural, non-moral character” (26). In the late-fourteenth and fifteenth centuries, however, a new kind of conception of rights had come into play through the works of French theologians such as Pierre d’Ailly and Jean Gerson, who began “to assimilate ius and libertas” (26) until such theologians had developed “an active right theory, in which to have any kind of right was to be a dominus, to have sovereignty over that bit of one’s world – such that even a child had sovereignty over its parents when it came to questions of its welfare” (28). Thanks to the efforts of Aquinas and these other theologians of the medieval era, rights discourse was becoming ever more sophisticated, and in it we can begin to discern a recognizable predecessor to our own conception of “rights”, while their theory of natural law was to eventually become of central importance in the succeeding centuries.

We have now arrived at my own era of specialization, the Renaissance. It was in the Renaissance that humanist lawyers began to initiate a sort of backlash against the medieval idea of natural law and nascent “natural rights”: instead of idealizing man in the state of nature, the humanist lawyers tended to regard natural man as primitive, and chose instead to equate rationality and law with civilization as opposed to what was natural (Tuck 34). As Tuck notes, “What was important to them was not natural law but humanly constructed law, not natural rights but civil remedies . . . The humanists . . . accepted the classical Roman view: all real moral relationships belonged to the stage of civilization” (33, 35). The humanist turn to man-made positive law and the institutional workings of political communities did not, however, signal the death of natural law, for as we shall see, natural law theories were to enjoy a prominent place in the transcendent rights discourse of the Renaissance Spanish scholastics. For now, though, I would like to turn to my first case study, in which Sir Edward Coke provides an interesting example of a pragmatic rights discourse based not on a universal, transcendent moral order of a kind championed by natural law, but rather, on the civil laws and institutions of a very particular time and place: Stuart England.

Sir Edward Coke and English Liberty

Sir Edward Coke lived forever – or maybe it just seems that way. Over the course of his eighty-two years, Coke actively served as a lawyer and politician during the reigns of three monarchs: Queen Elizabeth I, King James I, and King Charles I. Coke is a towering presence in the history of English law, for his monumental works the Reports and Institutes attempted to record and organize the entire history of the common law of England. Coke’s reasons for preserving the English legal records were not just practical, however, but also deeply ideological. As Corrine C. Weston explains, there was in Stuart England a growing belief in what is known as “the doctrine of the ancient constitution” (375), whereby it was asserted that certain laws and institutions in England dated back to the days of the Anglo-Saxons, rendering the common law the most ancient and supreme authority in the land. As Weston writes, “The source of that doctrine was Sir Edward Coke, whose Reports published in eleven parts in 1600-1615, and Institutes of the Laws of England (1628-1644) contain the legal and historical ideas linking ancient constitution and common law” (375). The elevation of common law through the doctrine of the ancient constitution had important implications for those serving under the Stuart kings: under the terms of this doctrine, common law granted and protected “subjects’ rights and liberties” (384) in a pragmatic way that the king could not override. This doctrine soon became highly contentious, for the growing absolutist tendencies of the Stuart monarchs left both James I and Charles I hostile towards the idea that the common law could somehow grant English subjects any liberties independent of the king’s will: “James I’s rejoinder expressed impatience with ‘anti-monarchical’ words about ancient liberties unless it were added that he and his ancestors had granted them” (374-375, italics mine). As we are about to discover, James and Charles were right to worry, because the doctrine of the ancient constitution was indeed a potent weapon in the hands of those anxious to curtail the attempts of the Stuart kings to expand their powers. By asserting the supremacy of the common law and the English “liberties” it safeguarded, men such as Coke were able to draw upon an alternative source of liberty and authority, one that could challenge the power of monarchs by rooting the rights of the subject not in the arbitrary whims of a ruler, but within a legal and political framework that could mediate the relationship between king and subject, thus “plac[ing] the subjects’ rights and liberties on the same foundation as the royal prerogative” (Weston 384). I would now like to turn to the words of Sir Edward Coke himself, to see how this rhetoric of the ancient constitution was put into active political service in defense of a pragmatic view of the rights of English subjects.

First, it is worth pausing to consider the ways in which Coke speaks of the common law and Magna Carta in the second part of his Institutes. He writes, “[Magna Carta] is also called Charta libertatum Regni [“the charter of the liberties of the realm”], and upon great reason it is so called of the effect, Quia liberos facit [“because it makes men free”]: sometime for the same cause Communis libertas [“common liberty”]” (Institutes 747). In this passage, Coke repeatedly stresses the idea of a uniquely English “liberty”, one that is articulated and enforced by the legal tradition, the ancient constitution, that underpins the rights of the English subject. Coke goes on to assert the ultimate supremacy of the common law in England when he writes, “The highest and most binding Laws are the Statutes which are established by Parliament; and by Authority of that highest Court it is enacted . . . That if any statute be made contrary to the great Charter . . . that it shall be holden for none” (751-752, italics Coke’s). In anointing the common law as containing “the highest and most binding Laws”, and in declaring Parliament to be the “highest Court”, Coke places an immediate boundary around the royal powers exercised by the king, for he insists that “any statute” that is “contrary to the great Charter” – that is to say, Magna Carta – is invalid. Here, then, is the sturdy foundation upon which English liberties rest – not through the invocation of a transcendent universal natural law, but through the concrete and pragmatic legal traditions of England itself.

Coke’s firm belief in Magna Carta and the common law is not just confined to his legal treatises, for he employed the same rhetoric in heated parliamentary debates regarding the tensions between subjects’ rights and the expanding powers of the Stuart kings. During a session of Parliament on April 26th, 1628, Coke spoke against a law proposed by Charles I, which would have granted the king the powers to arrest any subject without an immediate, explicitly stated cause. Even at the age of seventy-six, Coke proved a tireless advocate of subjects’ rights in the face of monarchical absolutism. In reflecting upon the wording of the king’s proposal, in which the king trotted out the usual Stuart line that all liberties and rights are granted only through royal “grace” or favor, Coke counters, “I delight in the King’s grace, but will you have Magna Carta as a grace? Our petition is a petition of right, and the King is to do it in right” (Speeches 1267, italics mine). Coke stresses the same point a little later, when he once again quibbles over the king’s use of “grace”: “For the third, we shall out of grace enjoy our ancient fundamental liberties. Is it not right?” (1267, italics mine). In rejecting the very idea of liberties dependent upon royal “grace” as opposed to the rights embedded in the tradition of English common law, Coke finds an effective rejoinder to the attempted expansion of the king’s powers.

Finally, Coke emphasizes the supremacy of the common law as the supreme authority in the land, one to which even the king must yield. He exclaims incredulously, “Shall we seclude the Statutes and customs, and he [the king] not proceed according to the common law?” (1267). It is the issue of arbitrary imprisonment that most exercises Coke, for he warns Parliament,

If we agree to this imprisonment for ‘matters of state’ and ‘a convenient time’, we shall leave Magna Carta and the other statutes and make them fruitless, and do what our ancestors would never do . . . I would never yield to alter Magna Carta . . . [this proposed law] binds the subject where he was never bound. Never yet was any fundamental law shaken but infinite trouble ensued. (1268)

For Coke, to abandon or “alter” Magna Carta in any way is to invite “infinite trouble”; his passionate invocation of “our ancestors” and the specter of a new law that could “bind the subject where he was never bound”, speaks to his deep-seated belief in the ancient constitution, and the fundamental importance of certain legal and political institutions for defining and safeguarding the liberties of the English subject: to risk altering any of those laws is to jeopardize English liberties themselves.

In light of Coke’s commitment to the uniquely English institution of common law and the liberties it grants to English subjects, I see Coke as someone representative of the pragmatic discourse of rights: he has no interest in appealing to an transcendent natural law or moral code to grant rights to Englishmen, for it is in the concrete legal traditions and institutions such as Magna Carta and Parliament that rights are truly found. In other words, Coke’s conception of the rights of the English subject is highly nationalistic and legalistic, and he represents a continuation of the humanist tendency to ground the status of the subject within the framework of civilization and a particular political community. It is in some ways an appealing way in which to approach the issue of rights, and at times a highly effective one, but as I mentioned above, it is not the only way in which to conceive of rights. It is time to give the transcendent rights discourse a fair hearing, and our representative is none other than one of the greatest Spanish scholastics, Francisco de Vitoria.

Francisco de Vitoria and the Power of Natural Law

The discovery and conquest of the New World – South America – by the Spanish in the early decades of the sixteenth century was one of the great turning points in history. Amazed by the discovery of millions of people living on a continent no European had even suspected existed, the Spanish found themselves dealing with a multi-faceted political, ethical, and legal conundrum. As J.A. Fernández-Santamaria writes, “No one who reads the account of the controversies over the nature and political fate of the Indians . . . can possibly doubt that in the eyes of the Spanish publicists and of the government itself the questions under discussion were of the utmost gravity and import not only for Spain but, more significantly, for the whole political universe of man” (58). A heated debate erupted in Spain as to whether or not Spain even had the legal right to conquer the New World, and the question of the status of the indigenous peoples of South America became a particularly contentious issue. While some Spanish thinkers, such as Juan Ginés de Sepúlveda, argued that the indigenous peoples were “natural slaves” according to the Aristotelian theory and therefore deserving of subjugation by the Spaniards, an influential theological school at the University of Salamanca stepped forward to defend the rights of the indigenous peoples. Martti Koskenniemi explains, “The views of these Spaniards [of the School of Salamanca] on the rights of the Indians were quite homogenous . . . against the older theory that the Indians were natural slaves . . . they regarded the Indians as humans and thus, like all humans, born free” (8). To make their case, the Spanish scholastics drew upon the ius gentium, the law of nations, and the medieval tradition of a transcendent, universal natural law. In his speech, On the American Indians, delivered in 1539, Francisco de Vitoria uses natural law as the foundation for assessing the justice – or rather injustice – of the Spanish Conquest, particularly in regards to Spanish treatment of the indigenous populations. As Anthony Pagden notes, Vitoria’s treatise is significant because it is “the first to claim that the ‘affair of the Indies’ . . . was a question neither of the limits of papal jurisdiction, nor of Roman law, but of the law of nature, the ius naturae, and that the issue is consequently one not of juridic but of natural rights” (80). Although I cannot hope to even begin to cover all of Vitoria’s arguments here, I will nevertheless highlight some of the most important points he makes in his defense of indigenous rights.

First, let us consider Vitoria’s rebuttal to those who advance the Artistotelian theory of “natural slavery” to justify the oppression of the indigenous peoples in the New World. Vitoria claims that this theory is based on a misreading of Aristotle, explaining that while Aristotle believes that some men are, through their natural abilities, born to be leaders, while others are meant to be common laborers and followers, he nevertheless insists, “Aristotle certainly did not mean to say that such men thereby belong by nature to others and have no rights over their own bodies and possessions . . . Such slavery is a civil and legal condition, to which no man can belong by nature” (251, italics mine). In this passage, Vitoria contrasts what might be tolerated under man-made positive law – a possible “civil and legal condition” – to the transcendent natural law, which grants all men an inherent liberty. Those who claim that they have the right to enslave the indigenous peoples, then, are falling afoul of the universal moral order that decrees otherwise.

Next, as I noted previously, the medieval theorists of natural law believed in man’s inherent rationality, or “right reason”, that connects us to natural law and helps us to determine good from evil. Much of the debate surrounding the indigenous peoples thus centered upon whether or not they could be considered rational men, with many pro-imperialist thinkers arguing against indigenous capabilities. Vitoria refuses to deny natural rationality to the indigenous peoples, declaring,

[T]hey are not in point of fact madmen, but have judgement like other men. This is self-evident, because they have some order (ordo) in their affairs: they have properly organized cities, proper marriages, magistrates and overlords (domini) and laws, industries, and commerce, all of which require the use of reason. (250)

Vitoria goes on to concede that, even if the indigenous peoples come across as “insensate and slow-witted”, this is due not to an inherent lack of natural reason, but rather, to “their evil and barbarous education” (250), which could presumably be rectified. In granting this natural reason to the indigenous populations of the New World, Vitoria emphasizes their humanity in the context of natural law, thereby granting them a protected status by virtue of that humanity.

In regards to the religious argument that was sometimes advanced against the indigenous peoples – that they were infidels, and therefore needed to be conquered and forcibly converted by the Christian Spaniards – Vitoria turns to the natural law theories of St. Thomas Aquinas, asserting that no particular religious belief (or lack thereof) can or should result in the forfeiture of one’s natural rights: “Aquinas shows that unbelief does not cancel natural or human law, but all forms of dominion (dominia) derive from natural or human law; therefore they cannot be annulled by lack of faith” (244). Vitoria, in systematically demolishing the Spanish arguments for seizure of the lands, possessions, and persons of the indigenous populations, declares, “that before the arrival of the Spaniards these barbarians possessed true dominion, both in public and private affairs” (251), and concludes, bluntly and unapologetically, “It is clear from all that I have said that the Spaniards, when they first sailed to the land of the barbarians, carried with them no right at all to occupy their countries” (264). Instead, Vitoria argues, the Spaniards should regulate their relations with the indigenous peoples through adherence to the ius gentium, the law of nations, which would grant the Spaniards the right to travel and trade with the indigenous populations, while preserving the natural dominion and rights of both parties (278).

As Martti Koskenniemi writes, Vitoria and his followers at the School of Salamanca used their belief in natural law to “deriv[e] a theory of individual rights (of dominium) as well as of their universal applicability as the foundation of just relations between all human beings” (16, italics mine). While Sir Edward Coke’s pragmatic rights discourse limits Coke’s interests to the status and liberties of only an English subject, Vitoria’s invocation of a transcendent natural law discourse allows him to speak as though the rights and protections granted by natural law are as valid and applicable to a pagan resident of South America as they are to a Christian in Spain. Vitoria’s transcendent rights discourse therefore regards national boundaries and the legal and political institutions of specific countries as of secondary importance in the topic of rights. In fact, it is a tribute to the transcendent and consistently universal character of natural law theory that Vitoria chooses adherence to that theory even in opposition to the imperial interests of his own country. In defending the rights of the indigenous peoples half a world away through insisting upon the universal power of natural law, Vitoria was appealing to a higher authority than that which could be offered through the particular legal or political tradition of a specific nation state. In this respect, then, Vitoria and the Renaissance Spanish scholastics posit an alternative, transcendent discourse of rights in opposition to Sir Edward Coke’s later – and more limited – pragmatic approach. The high-mindedness and deep moral commitment of the transcendent discourse is therefore rather appealing in its universalism and even cosmopolitan outlook. But one pressing question remains – to which discourse do we adhere most closely today, the pragmatic, or the transcendent?

Conclusion: Rights in the Modern World

Retracing the history of human rights discourse serves as a strong reminder that we cannot afford to act as though our rights were self-evident. What is more, perhaps the most remarkable feature of such discourses is how persistent they have continued to be right up until the present day: the tensions and debates between pragmatic and transcendent theories of rights continue unabated, and have yet to be fully resolved. Michal Ignatieff, for example, argues that, “Our grounds for believing that the spread of human rights represents moral progress . . . is pragmatic and historical” (4, italics mine). He asserts elsewhere in the same book, “human rights is a secular humanism: an ethics ungrounded in divine or ultimate sanction and based only in human prudence” (81). Is this really so? I have no doubt that Sir Edward Coke would be nodding in agreement with such sentiments, but before we surrender ourselves too readily to a pragmatic approach, we should consider one last thing: the United Nations’ Universal Declaration of Human Rights. Drafted in the traumatic wake of World War II, in which Europe was left sickened and demoralized by the horrors of war and the Holocaust, even Ignatieff concedes that the Universal Declaration “represented a return by the European tradition to its natural law heritage . . . giv[ing] individuals the civic courage to stand up when the state ordered them to do wrong” (5, italics mine). But upon what grounds can we dare to oppose the state, if only the particular institutions and laws of a state can grant rights? To concede that there are rights that transcend the power of individual states is to imply that there is some sort of ultimate moral standard, as Vitoria and the scholastics once argued.

Ignatieff makes a strong case when he argues that rights are mere empty rhetoric without the political and legal structures necessary to put rights into practice, and it is hard to dispute that rights, if they are to have any weight at all, need an institutional structure to safeguard them, as the pragmatic discourse asserts. But then again, before there can be such institutions and legal structures, there must be a dream to serve as our blueprint for creating such a political society in the first place: if the transcendent discourse represented in the Universal Declaration stands for anything, it stands for a deep-seated belief that every country can and should evolve politically to promote the liberty and dignity of all in every corner of the world. The pragmatic discourse tells us how to enshrine rights within specific societies; the transcendent discourse argues for the validity of having the same rights in all societies everywhere. Ultimately, neither Coke nor Vitoria had the last word in the pragmatic versus transcendent debate: they have thrown the torch to us, and in the midst of all the political upheavals that confront us in the 21st century, we must take on the challenge of deciding for ourselves which rights discourse will light our way forward.

Koskenniemi, Martti. “Empire and International Law: The Real Spanish Contribution.” The University of Toronto Law Journal 61.1 (2011): 1-36.

Pagden, Anthony. “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians.” The Languages of Political Theory in Early Modern Europe. New York: Cambridge UP, 1990. 79-98.

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